Thomas Jefferson, third President of the US, asserted: “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution”. Have we, by means of proper legislation and consequent action, made good use of the chains that our constitution provides us?
On August 27, the Constitution turned 11 amid attempts to amend it. My main concern, however, is how we can draw maximum returns from it, amendments or not. I am triggered by two proclamations from President Kenyatta and Chief Justice Martha Koome, respectively.
First is the President’s claim, albeit subtle, that the judiciary was still the weak link in graft war. Second is the CJ’s commitment to defend the constitution, and her promise to hold collaborative dialogue with other arms of government to boost justice.
Now, these are words from individuals, their offices notwithstanding. And such will remain, unless solid steps are taken to demonstrate commitment – at least officially. I laud the CJ’s spirit of offering an olive branch to the other two arms of government. Instructively, arms of government are only separate in formal terms.
Functionally, they ought to remain one, even as they perform their main duty – that of maintaining checks and balances in a bid to secure means and ends in matters of national importance. This is the basic theory behind the structure of the constitution.
As such, each arm ought to ask itself how best they can help fulfil the letter and spirit of the constitution. I take the example of corruption, since this is the biggest enemy that threatens the country’s development plans, whether Vision 2030 or Big Four Agenda.
Whereas the President threw the gauntlet at the feet of the judiciary, the public domain knows well that the latter has often complained about equivocal laws and shoddy criminal investigations.
Most recent is the Director of Public Prosecution, who decried laws that make their work hard, wherein courts have leeway to freeing graft suspects by way of generous stay orders and injunctions.
Which begs the question as to why the three arms cannot sit and chart the best way forward. The President, in this case, has several avenues. As the head of the Executive, he has powers to decree certain directives, the formality of separation of powers notwithstanding.
Further, has the means to rally the political class into crafting resolute, workable laws that will support the war against graft, implying that he has a voice in Parliament – an advantage that even the head of Parliament (the Speaker) does not have.
The challenge is therefore simple. Let the three arms, away from the media, hold a genuine candid conversation. Let the judiciary and the DPP point out flaws in graft laws, and have the President – who currently enjoys support from both his government and the opposition – implore legislators to craft pieces that will make sense out of Chapter Six and other related scriptures of the supreme law.
This is the only way to guarantee justice, regardless of the man or woman in office. Else, we have so little to celebrate what we hail as the most progressive constitution on earth, when its letter doesn’t count.
